The Washington PostDemocracy Dies in Darkness

Opinion May true statements be criminal libels, if they are said with ‘bad motives’ or for ‘unjustifiable ends’?

No, the Minnesota Court of Appeals just held this morning, in State v. Turner. The Minnesota statute read, in relevant part,

Subdivision 1. Definition. Defamatory matter is anything which exposes a person or a group, class or association to hatred, contempt, ridicule, degradation or disgrace in society, or injury to business or occupation.
Subd. 2. Acts constituting. Whoever with knowledge of its defamatory character orally, in writing or by any other means, communicates any defamatory matter to a third person without the consent of the person defamed is guilty of criminal defamation and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.
Subd. 3. Justification. Violation of subdivision 2 is justified if:
(1) the defamatory matter is true and is communicated with good motives and for justifiable ends; or
(2) the communication is absolutely privileged; or
(3) the communication consists of fair comment made in good faith with respect to persons participating in matters of public concern; or
(4) the communication consists of a fair and true report or a fair summary of any judicial, legislative or other public or official proceedings; or
(5) the communication is between persons each having an interest or duty with respect to the subject matter of the communication and is made with intent to further such interest or duty.

The court concluded:

1. The limitation of the defense of truth via the “requirement that the truth be communicated with good motives and justifiable ends violates First Amendment protections,” “because it penalizes protected speech — true statements — in addition to unprotected speech — false statements.”

2. The statute is also invalid because it allows punishment for statements on matters of public concern in the absence of a showing that the speaker knew the statement was false (or at least knew it was likely false but recklessly disregarded that likelihood):

In addition, amicus curiae contend that “actual malice” [i.e., knowledge of falsehood or likely falsehood] is required to punish false statements regarding matters of public concern because it is not “permissible to jail people under a lesser showing than that required to collect punitive damages from them.” We agree.

3. The statute shouldn’t have been narrowed by a court so as to be consistent with the First Amendment — that “would require a rewrite” of the statute, which needs to be done by the legislature.

The court also noted that the defendant’s “conduct was reprehensible and defamatory.” (He had posted Craigslist postings purporting to be from his ex-girlfriend and her underage daughter, which offered to have sex with male readers, challenged women readers to a fight, and contained the ex-girlfriend’s and daughter’s cell phone numbers.) But the court concluded that the conviction had to be reversed, because the statute violates the First Amendment and is therefore void; under the First Amendment “overbreadth” doctrine, a statute that covers a substantial amount of constitutionally protected speech cannot be enforced against anyone, even someone who could have been punished under a narrower, constitutionally valid statute.

Readers may recall that the UCLA First Amendment Amicus Brief Clinic that I run filed an amicus brief in this case on behalf of the Electronic Frontier Foundation, advocating for the result that the court reached; you can read it here. Thanks again to Erick Kaardal (Mohrman & Kaardal) for his help as local counsel, to my student Jeffrey Brandt, who helped draft the brief, and to retired Judge Jack Nordby and Profs. David Babbe, Brad Clary, Beth Colgan, and Allan Erbsen who mooted me for my oral argument in the case (Turner’s lawyer John Arechigo split his oral argument time with me).